Monday, June 27, 2005

Slippery Slopes

Free speech. Eminent domain. Why does the slippery slope argument appear in opposite ways in those two areas?

Let me explain. In the recent Kelo decision, the plaintiffs were very sympathetic. Yet they lost. The underlying motivation behind the majority's decision, as well as the reaction from some (note: some) liberalbloggers, seems to be something like this: "This may be a bad outcome in this particular case, but think how awful it would be if courts started protecting property rights with too much vigor! Why, we wouldn't want to risk creating a doctrine that might someday block a beneficial governmental action. So it's better just to take a hands-off approach. The majority can pretty much do what it wants."

But in free speech, the opposite occurs, all the way around. Many of the most famous free speech cases have involved plaintiffs who are not sympathetic at all, but instead who have engaged in speech of the most juvenile, obscene, or useless sort. Even activities that are not speech at all. Thus, we have famous Supreme Court cases that assumed that the First Amendment applies with full vigor to: (1) flag-burning; (2) nude dancing; (3) the production of computer-generated child p**n; (4) the burning of draft cards; (5) the wearing of a jacket that says, "F*** the Draft," (6) cross-burning, and so on. In the free speech arena, the usual thought is, "Well, this may be useless activity that barely qualifies as speech (metaphorically). Nonetheless, we the courts have to bring the full weight of the Constitution to bear here, because once the government starts regulating even the most frivolous speech, it won't be long before the government is restricting actual, valuable speech on one topic or another."

So there you have it. In one area, we have to tolerate the worst sort of private actions because we are too afraid of letting the government have any foothold to regulate. In the other area, we have to tolerate the worst sort of governmental abuses because we are too afraid of the slightest impingement on government power.

If the two areas resembled each other, however, you would see one of two arguments: (1) "We have to allow the government to regulate the most high-minded political speech, because if courts ever started enforcing the Free Speech Clause, pretty soon the government wouldn't be able to do all the valuable work of banning flag burning, nude dancing, etc." Or: (2) "The government can't ban even toxic pollution, because if the courts permitted even the slightest interference with the most harmful exercise of property rights, soon the government would be taking away poor people's houses and giving the land to private corporations."

25 Comments:

'cause speech is more important than property. There, I said it. I'm sure there's a special section in the Hell of Posner's Inferno for us nasty liberals who think that, but I'm comforted to know that I'll have plenty of company there. (Cf. the Pruneyard doctrine, Fair Use, etc. etc. etc.)

Paul: Why? Sure, it's the sort of things that lawyers and professors like to say, but why? (Cynical answer: Because it isn't their own property that's in jeopardy.)

More to the point, your observation is irrelevant. Even if speech is somehow "more important" than property, whatever that is supposed to mean, why does that make the slippery slope run the opposite way? Why, instead, don't the arguments run in parallel?

E.g., imagine a Justice who said: "We have to be vigilant in protecting even frivolous speech, because we don't want to start down the road of allowing the government to regulate speech. When it comes to property, we'll be a little more forgiving of the government's efforts to prevent pollution, protect the environment, etc., but we'll still be relatively vigilant so that we don't end up with the horror of the government seizing people's homes to make room for the Pfizer Corporation."

Instead, with property, the slippery slope runs in reverse. We must allow the most horrible abuses, because if we cracked down in even the slightest way, it might jeopardize the oh-so-precious things that the government does the rest of the time.

The question of why speech is more important than property is one that's really hard to answer without getting into one of those infinitely recursive arguments that never end because it's impossible to come up with a common currency to objectively compare the values of these different interests.

So my best argument right now is this: speech is a necessary precondition for the protection of all other rights. In order to protect property, we must have representation in government, and in order to have representation in government, we must have free speech. (See also Habermas, Moral Consciousness and Communicative Action and Between Facts and Norms for a slightly different, but similar case.)

The same is not the case for land: many non-landowners quite effectively participate in the political process. Admittedly, wealth increases the ability of people to participate in the political process (witness lobbyists), but you really don't want the implications of that argument, which include massive wealth redistribution to maintain the principle of equal opportunity to participate in the normative discourse.

It's more legitimate to be on guard against slippery slopes to protect speech because speech is so important. We don't need to be worried about slippery slopes on less important things like property, because the bottom of the property slope is less horrible than the bottom of the speech slope. Mass deprivation and redistribution of all property ("communism") would be less bad than mass censorship of all speech ("absolute dictatorship"), if we had to choose one or the other. That follows directly from the difference in importance between the values to be protected from said slopes.

(Also, I don't agree that the slippery slope should go "the other way" on property. I disagree, at least on policy grounds, with Kelo. We do need to rein in the takings power at least when it involves wealth transfers to for-profit private entities.)

Not to be recursive, but law professor Jim Ely makes the argument that property rights underly other rights - in his excellent "The Guardian of Every Other Right: A Constitutional History of Property Rights" (Oxford, 2nd ed. 1997).

How about this... (as a second, alternate, point; but without giving up my primacy argument above)

Everyone has speech, not everyone has property in any significant degree. Privileging property over speech (assuming that we have to occasionally infringe on some right to have a functioning society) works an injustice compared to privileging speech over property, because the former works to advantage a limited class of people, while the latter advantages all.

If we are worried about property why isn't the power to tax a much more relevant "slippery slope" concern?

"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived..."

My point is not directly constitutional but political. At least in free speech and "takings" citizens have relatively well established constitutional rights. But slopes are obviously slipperier without constitution protection. What brakes do we have on the power to tax (income, real estate, estates, consumption etc.) but the whim of the majority?

Which leads to a final question: What if the majority in Congress made the estate tax 100% instead of 50%? Constitutional? I think so. But then wouldn't that make "private" property rights a joke? In other words, we never really own anything because when we die the value of our "private" property would go to the government. If that's true isn't the current 50% estate tax a dillution of private property "rights"?

Everyone has speech, not everyone has property in any significant degree.

I'd put it the other way around. Very few people have "speech" in any sense that any government would conceivably be interested in. Most people, after all, don't have blogs; don't write newspaper columns or have radio talk shows; don't appear on television. But they do have a car or a house or a bank account. If you asked them to choose between giving up a theoretical right to burn a flag versus giving up their house, it wouldn't even be a close question.

Visibly contestable but yet meaningful reason speech is more important than property (c): the right to speak does not directly involve a limitation of the freedom of others -- speech can always be countered by more speech. On the other hand, the right to use property does directly involve a limitation on the freedom of others to use that same property.

If I talk about a beach, other people can talk about it too. If I buy a beach, other people can't go swimming. Hence speech, as a right, is more freedom-facilitative than property. (cf. Jefferson's remarks about intellectual property.)

I'm deliberately not defending my prior assertions, though I still hold them, simply because I think this is a debate that will never, never, ever end.

You are right that the Court's positions are inconsistent as far as the logic of their rationales, but, as John Thacker hints, the Court is consistent in a different way. It always decides in a way opposite to traditional morality.

Thus, under traditional (Biblical) morality, political speech should be free, child pornography and fire banned, and private homes secure from seizure. In every case the Court rules the opposite way.

It would seem that the best empirical description of the Court's jurisprudence is that it is anti-Christian. The rationales are not consistent because they do not motivate the rulings; their function is merely to obscure the animus.

Brett: that point I will answer, because I think it has a fairly large latent flaw -- you can't deprive a person of all space in which to place their body, or you kill them. That's the right to continuation of life (which is indeed more important than property), not property except as an instrumental good necessary for life.

Paul wrote - "If I talk about a beach, other people can talk about it too. If I buy a beach, other people can't go swimming. Hence speech, as a right, is more freedom-facilitative than property. (cf. Jefferson's remarks about intellectual property.)"

Actually, if you buy a beach, other people may be able to go swimming, depending on how much beach under the water you bought. They more clearly can't walk on the beach. This does not change the idea of talking about a beach, but could cause a revision of your argument.

Also, I think both are important, and may or may not overlap. Stuart has a point that while we have free speech, not everyone has voice, especially the poor. Similarly, one of the largest problems I see with the use of Eminent Domain is the people who are forced to sell their homes. They do not appear to be wealthy land owners or large business owners. They appear to be "average Joe and Janes" or poorer people. These people lose their voice because they can't afford high level lawyers that the developers can pay. I see this as a larger problem of justice. Freedom of speech has a plethora of advocates, but low income property owners may soon need to have an organization rallying and lobbying Washington for property protection.

David: there, I agree with you. In fact, although I'm defending speech as more important than property, the result in Kelo makes me absolutely spitting mad, and for just those reasons you identify. The Supreme Court has repeatedly (cf. Buckley v. Valeo) shown its utter unwillingness to recognize the existence of gross corruption of the political process by monied interests. This sort of behavior is corporate welfare of the most offensive sort, and it needs to be stopped with swift and extreme legal force.

However, I also think the same about corporations being permitted to use the state to trample on speech :-) (cf. copyright fascism)

Paul, can you publish a newspaper, if you can't own a printing press? If you can't buy paper and ink?

And if you don't own a printing press, how can you exercise your right to freedom of the press, if the government can bar you from renting one? Which is essentially what McCain/Feingold does...

And, even if the right to live precludes the government from compressing you into a sigularity, you'll find it pretty difficult to exercise your other rights, if the government can strip you of the right to live in any particular place, and move you about at will.

No, you have to be able to live your life, with some independence and security, free from reprisal, to realistically speak freely. If you are utterly vulnerable, then the right to speak is moot, as you dare not exercise it.

Brett sez: No, you have to be able to live your life, with some independence and security, free from reprisal, to realistically speak freely. If you are utterly vulnerable, then the right to speak is moot, as you dare not exercise it.

Brett, I agree. I assume you'll be voting with me in favor of a massive program of redistribution to permit those millions of Americans who can't live their lives with some independence and security, free from reprisal, to do so?

Let me respond to one of the earlier comments on why property is less important than free speech. As a practical matter this is a silly distinction, both are clearly important. But as a legal matter the answer is because the Constitution says so.

The First Amendment speaks in absolute terms: "Congress SHALL make NO law" abridging free speech. By contrast, the Fifth Amendment references property as a subordinate clause, not in absolute terms, but with qualifiers: "nor shall private property be taken for public use without just compensation."

There is no absolute right to property in the Constitution as there is with speech. Everything you own is subject to the possibility of eminent domain. You may find this inconvenient, but that's the structure the founders created.

Property rights are utilitatian. Speech rights are fundamental. Why then are cases like Kelo so surprising? As Stuart noted in another posting, Kelo is hardly a stretch from current and longstanding precedent.

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